Saturday, February 23, 2008

The classical model of international lawmaking posits governments as exclusively authoritative actors. However, commercially-oriented entities have long been protagonists within the prevailing international legal order, concluding contracts and resolving disputes with governments. Is the international legal personality of corporations undergoing further qualitative transformations? Corporations influence the State practice constitutive of custom and create, refashion or challenge normative rules. The corporate willingness to fill legal lacunae where governments do not exercise their full regulatory responsibility is also observable through resort to alternative legal mechanisms. Corporations moreover contribute directly to treaty negotiations and occupy crucial roles during subsequent implementation. Indeed, an analysis of the access conditions and participatory modalities for non-State actors could support a right to participate under common international procedural law. Their substantive contributions are also evident when corporations participate in enforcing international law against governments through national courts, diplomatic protection (including the WTO) and arbitration (including NAFTA). However, the practice of intergovernmental organizations reveals several challenges including managing corporate interaction with developing country governments and other non-State actors. Acknowledging corporate contributions also has important implications for national regulatory autonomy, the ability of governments to mediate contested policy issues, the democratic legitimacy of the contemporary lawmaking process and an understanding of consent as the underlying basis for international law.

Yesterday, I noted a Wall Street Journal article on the Commission on the Limits of the Continental Shelf and noted the reported conclusion of a senior State Department official that Senate advice and consent this year "appears unlikely." Now comes a report that that official says that the Journal's characterization of his or her views is incorrect. Scott Paul, who has lobbied for the Convention's approval, quotes an email from the official, as follows: "I told the reporter that our official position was that we were very hopeful of getting the treaty through the Senate this year. Then he probed about obstacles in our way, like the election year, the strong lobbying efforts by opponents, the opposition by GOP candidates (there were more than one at the time), etc. His spin on my responses was a lot more negative than I expected." Paul adds: "knowing this individual and his/her outlook on the Convention's prospects, I also happen to know that it [the Journal's characterization of the official's views] is wrong."

Yesterday, the U.S. Court of Appeals for the Second Circuit decided Vietnam Association for Victims of Agent Orange v. Dow Chemical Co. (opinion here). The plaintiffs alleged, among other things, that "the United States government violated international law by spraying toxic herbicides in areas of South Vietnam from 1962 to 1970 and that Defendants either aided and abetted the government's violations by supplying it with Agent Orange or that they were directly liable in their corporate capacities," in violation of the Alien Tort Statute. The district court dismissed the ATS claim (opinion here). The Second Circuit, in an opinion by Judge Miner, affirmed the lower court's decision, concluding:

Plaintiffs have, at best, alleged a customary international norm proscribing the purposeful use of poison as a weapon against human beings that is inapplicable in this case. We hold that Plaintiffs' claim that “defendants manufactur[ed] and suppl[ied] a[n] herbicide laced with poison” and used as a defoliant fails to satisfy the standard set forth by the Supreme Court in Sosa for recognition of a tort in violation of international law and is, therefore, not cognizable under the ATS. [citations omitted]

Defendants have argued that “civil aiding-and-abetting liability” may not be imposed on corporate entities for violations of the law of war and that, in any event, prudential considerations should preclude adjudication of Plaintiffs' claims. Because Plaintiffs' claims fail to assert a violation of international law norms that are universally accepted and as specific as the paradigmatic norms identified in Sosa, thereby resulting in a failure to establish a cognizable cause of action that gives rise to jurisdiction under the ATS, we need not address these secondary arguments.FN6

[FN6. After the filing of briefs and oral argument in this appeal, this Court addressed in a different case whether a district court had subject matter jurisdiction over ATS claims alleging that domestic and foreign corporations aided and abetted the government of apartheid South Africa in committing various violations of customary international law. See Khulumani v. Barclay Nat'l Bank, 504 F.3d 254, 260 (2d Cir.2007) (per curiam) (holding that “in this Circuit, a plaintiff may plead a theory of aiding and abetting liability under the [ATS]”).]

The National University of Singapore (NUS) and the Asian Society of International Law (AsianSIL) are pleased to invite applications to attend the inaugural Asian Society of International Law Young Scholars Workshop. The workshop will be held at NUS in Singapore from 10-12 September 2008. Paper-givers who are selected through a competitive process will have their reasonable expenses covered.

The workshop builds on the historic creation of AsianSIL in 2007 and is intended to cultivate the next generation of international legal scholars. This may include doctoral students and younger academics, as well as exceptional masters students. Young legal professionals with an interest in scholarship are also encouraged to apply.

The intention is for presenters to offer drafts of works in progress that can benefit from constructive criticism in a supportive and collegial environment. Each participant will present his or her own paper and comment on that of another.

Proposals from young scholars and professionals across the region are encouraged on any topic linked to international law, but particularly focusing on the "problems and prospects of a just world ordered under law". Subject areas might include (a) History and Theory of International Law, (b) Law of Armed Conflict (IHL), (c) International Organizations, (d) Dispute Settlement, (e) Law of the Sea, (f) Law of Environment, (g) Human Rights, (h) International Criminal Law, (i) Law of Development, (j) International Economic Law, (k) Private International Law (Conflict of Laws).

Please ensure that you include an abstract of not more than 250 words, indicating the relationship of the proposed paper to the conference theme of "problems and prospects" and identifying one or more of the subject areas listed above to which the paper relates.

Completed forms must be emailed to asiansil-admin@nus.edu.sg by 31 March 2008. Those selected to participate in the workshop will be notified by 14 April 2008. Participation will be contingent on producing a draft of the paper (in the order of 8,000 words) by 31 July 2008.

Today, the Wall Street Journal has an article on the Commission on the Limits of the Continental Shelf. The piece - Board of Scientists Is Swamped By Claims for Rich Sea Floors - describes the work of the Commission and what's at stake. It also notes that the United States has not made any submissions to the Commission, as it is not a party to the UN Convention on the Law of the Sea. The treaty is pending in the Senate, but Senate advice and consent "appears unlikely," according to a senior State Department official.

Charlotte Ku (Univ. of Illinois, Urbana-Champaign - Law) will give a talk today at the University of Cambridge Lauterpacht Centre for International Law Lent Term Lecture Programme on "A New Framework for Understanding the International Legal System."

Ingrid Wuerth (Vanderbilt Univ. - Law) will give a talk today at the University of Georgia School of Law International Law Colloquium on "An Originalism for Foreign Affairs?"

Thursday, February 21, 2008

The Temple Law Review will host a symposium on "Law Without Borders: Current Legal Challenges Around the Globe," March 1, 2008, in Philadelphia. The program is not yet available online. Why attend?

As legal issues increasingly transcend borders, and the needs of clients and the profession expand, this Symposium brings together leading scholars to discuss several of the global community's most pressing legal topics. This Symposium will highlight the unique challenges developed and developing nations must face in promoting intellectual property rights, developing economic reforms, protecting the environment, and building constitutions.

The Symposium will feature panels on four different areas of law, each studying a different facet of the dynamic between, and distinct challenges faced by, developing and developed countries. Panelists will discuss traditional knowledge as a form of intellectual property, economic reform and the Cape Town Convention, climate change litigation and water regulation, and comparative constitution building.

Stephen Allen (Brunel Univ. - Law) will give a talk today at the University of Oxford Public International Law Discussion Group on "International Law, the Bancoult Litigation and the Prospect of Resettling the Chagos Islands."

Jeremy Rabkin (George Mason Univ. - Law) will give a talk today at the Temple University School of Law International Law Colloquia on "Exit, Voice, Loyalty in International Organizations: Why Can't the President Check the First Option?"

David Scheffer (Northwestern Univ. - Law) will give a talk today at the California Western School of Law International Legal Studies Program and the University of California, San Diego Institute for International, Comparative, and Area Studies Joint Speaker Series on the Future of International Humanitarian Law. The topic is "The End of Exceptionalism in War Crimes."

This contribution argues that the universal recognition of human rights requires judges to take human rights more seriously in their judicial settlement of disputes "in conformity with the principles of justice and international law", as prescribed in the Vienna Convention on the Law of Treaties (Preamble VCLT) as well as in the UN Charter (Article 1). Section I explains the constitutional duty of judges to interpret law and settle disputes in conformity with principles of justice as increasingly defined by human rights. Section II argues that the "multilevel judicial governance" in Europe - notably between the European Community (EC) Court of Justice and its Court of First Instance, the EC courts and national courts, the European Free Trade Area (EFTA) Court and national courts, and the European Court of Human Rights (ECtHR) and national courts - was successful due to the fact that this judicial cooperation was justified as multilevel protection of constitutional citizen rights and, mainly for this reason, was supported as "just" by judges, citizens and parliaments. Section III concludes that the European "solange-method" of judicial cooperation "as long as" other courts respect constitutional principles of justice should be supported by citizens, judges, civil society and their democratic representatives also in judicial cooperation with worldwide courts and dispute settlement bodies. As explained in Section IV, in a world that continues to be dominated by power politics and by reasonable "constitutional pluralism", it is easier for international judges to meet their obligation to settle disputes "in conformity with principles of justice" if courts cooperate and base their "judicial discourses" on "public reason", respect for human rights and judicial protection of the constitutional principles underlying human rights law.

Basak Çali (University College London - Political Science) will give a talk today at University College London as part of the International Law Association British Branch seminar series. The subject is: "The Interpretive Authority of Legal and Quasi-Legal Human Rights Bodies."

Tuesday, February 19, 2008

The latest issue of the Transnational Dispute Management Journal (Vol. 5, no. 1, February 2008) is out. The theme is "UNCTAD Expert Meeting on Development Implications of International Investment Rule Making."

Lawmaking bodies in one polity sometimes incorporate the law of another polity "dynamically," so that when the law of the foreign jurisdiction changes, the law of the incorporating jurisdiction changes automatically. Dynamic incorporation can save lawmaking costs, lead to better legal rules and standards, and solve collective action problems. Thus, the phenomenon is widespread. However, dynamic incorporation delegates lawmaking power. Further, as the formal and practical barriers to revocation of the act of dynamic incorporation become higher, that act comes closer to a cession of sovereignty, and for democratic polities, such sessions entail a democratic loss. Accordingly, dynamic incorporation of foreign law has proven controversial both within federal systems and at the international level. The problem is most acute when nation-states agree to delegate lawmaking power to a supra-national entity. In order to gain the reciprocal benefits of cooperation and coordination, the delegation must be functionally irrevocable or nearly so. Representation of the member nation-states within the decision-making structures of the supra-national entity can ameliorate but cannot fully compensate for the resulting democracy losses suffered by those nation-states. More broadly, the benefits of dynamic incorporation must always be balanced against its costs, including the cost to self-governance.

This essay makes a proposal that might be controversial among tax scholars even if it is non-controversial to those with a particular interest in international law: that international social and institutional structures shape, and are shaped by, historical and contemporary domestic policy decisions. As a result, tax law scholars must seek a broad framework for understanding the rapid changes that are taking place in tax policy and politics. Our aim in this essay is to further an emergent dialogue between tax law scholars and international law scholars about how law and institutions evolve and interact in a globally integrated system. We do so by offering four lines of inquiry that incorporate the lessons from multiple areas of scholarship, including international relations theory, sovereignty theory, political philosophy, political economy, and behavioral game theory, so as to begin to understand the changing pressures on taxation that are emerging as a result of the increasingly complex relationship between states, markets, and people in a globalized world.

At the UN’s 60th Anniversary World Summit in 2005, one hundred and ﬁ fty world leaders made an historic decision: to embrace The Responsibility to Protect (R2P) vulnerable populations outside their own states from genocide and other mass atrocities. UN member states committed themselves to “use appropriate diplomatic, humanitarian and other peaceful means…” to protect threatened populations. They also agreed to use force only as a last resort. The UN Security Council has since endorsed R2P in resolutions concerning the protection of civilians in armed conﬂict and peacekeeping in southern Sudan and Darfur.

The responsibility to protect doctrine is multidimensional. Simply, it requires that when a state is either unwilling or unable to fulﬁll its responsibility to protect its own populations, UN member states are obligated to take action to minimize human suffering. Most importantly, it involves the responsibility to prevent such atrocities from occurring, and if prevention fails, it requires states to react and rebuild.

The R2P doctrine is one of the most signiﬁcant steps toward preventing genocide and other mass atrocities since the Nuremberg Trials. However, there has been little momentum to act on or even decide when we are facing an R2P situation. Moreover, R2P evolved in direct response to genocide and ethnic killings, and yet the ethnic dimensions of mass atrocities continue to be elided when contemplating the proper response; Iraq and Burma are but two examples. R2P’s application to identity-based issues of mass atrocities thus deserves special attention.

The conference seeks to provide a forum to conceptualize the normative legal and political content of R2P; to examine the R2P framework against identity-based atrocities including ethnic conﬂict and genocide and to address the political and operational challenges to the implementation of R2P. The proceedings will be published at a later date.

Vaughan Lowe (Univ. of Oxford - Law) will give a talk today at the University of Oxford Department of Politics and International Relations Lecture Series on Foundations of Governance in a Globalized World on "Private Disputes and Public Interest in International Law."